Interpretation

55.1 In this Part –

(a) ‘a possession claim’ means a claim for the recovery of possession of land (including buildings or parts of buildings);

(b) ‘a possession claim against trespassers’ means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not;

(c) ‘mortgage’ includes a legal or equitable mortgage and a legal or equitable charge and ‘mortgagee’ is to be interpreted accordingly;

I GENERAL RULES

Scope

(1) The procedure set out in this Section of this Part must be used where the claim includes –

(a) a possession claim brought by a –

(i) landlord (or former landlord);

(ii) mortgagee; or

(iii) licensor (or former licensor);

(b) a possession claim against trespassers; or

(c) a claim by a tenant seeking relief from forfeiture.

(Where a demotion claim or a suspension claim (or both) is made in the same claim form in which a possession claim is started, this Section of this Part applies as modified by rule 65.12. Where the claim is a demotion claim or a suspension claim only, or a suspension claim made in addition to a demotion claim, Section III of Part 65 applies).

(2) This Section of this Part

(a) is subject to any enactment or practice direction which sets out special provisions with regard to any particular category of claim;

(b) does not apply where the claimant uses the procedure set out in Section II of this Part; and

(c) does not apply where the claimant seeks an interim possession order under Section III of this Part except where the court orders otherwise or that Section so provides.

Starting the claim

(a) the claimant may make the claim at any County Court hearing centre, unless paragraph (2) applies or an enactment provides otherwise;

(b) the claim will be issued by the hearing centre where the claim is made; and

(c) if the claim is not made at the County Court hearing centre which serves the address where the land is situated, the claim will be sent to the hearing centre serving that address when it is issued.

(Practice Direction 55A includes further direction in respect of claims which are not made at the County Court hearing centre which serves the address where the land is situated.)

(2) The claim may be started in the High Court if the claimant files with his claim form a certificate stating the reasons for bringing the claim in that court verified by a statement of truth in accordance with rule 22.1(1).

(3) Practice Direction 55A refers to circumstances which may justify starting the claim in the High Court.

(4) Where, in a possession claim against trespassers, the claimant does not know the name of a person in occupation or possession of the land, the claim must be brought against ‘persons unknown’ in addition to any named defendants.

(5) The claim form and form of defence sent with it must be in the forms set out in Practice Direction 55A.

Service of claims against trespassers

55.6 Where, in a possession claim against trespassers, the claim has been issued against ‘persons unknown’, the claim form, particulars of claim and any witness statements must be served on those persons by –

(a)

(i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible; and

(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to ‘the occupiers’ through the letter box; or

(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to ‘the occupiers’.

Defendant's response

55.7

(1) An acknowledgment of service is not required and Part 10 does not apply.

(2) In a possession claim against trespassers rule 15.2 does not apply and the defendant need not file a defence.

(3) Where, in any other possession claim, the defendant does not file a defence within the time specified in rule 15.4, he may take part in any hearing but the court may take his failure to do so into account when deciding what order to make about costs.

(4) Part 12 (default judgment) does not apply in a claim to which this Part applies.

The hearing

55.8

(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may –

(a) decide the claim; or

(b) give case management directions.

(2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.

(3) Except where –

(a) the claim is allocated to the fast track or the multi-track; or

(b) the court orders otherwise,

any fact that needs to be proved by the evidence of witnesses at a hearing referred to in paragraph (1) may be proved by evidence in writing.

(Rule 32.2(1) sets out the general rule about evidence. Rule 32.2(2) provides that rule 32.2(1) is subject to any provision to the contrary)

(4) Subject to paragraph (5), all witness statements must be filed and served at least 2 days before the hearing.

(5) In a possession claim against trespassers all witness statements on which the claimant intends to rely must be filed and served with the claim form.

(6) Where the claimant serves the claim form and particulars of claim, the claimant must produce at the hearing a certificate of service of those documents and rule 6.17(2)(a) does not apply.

Allocation

(1) When the court decides the track for a possession claim, the matters to which it shall have regard include –

(a) the matters set out in rule 26.8 as modified by the relevant practice direction;

(b) the amount of any arrears of rent or mortgage instalments;

(c) the importance to the defendant of retaining possession of the land;

(d) the importance of vacant possession to the claimant; and

(e) if applicable, the alleged conduct of the defendant

(2) The court will only allocate possession claims to the small claims track if all the parties agree.

(3) Where a possession claim has been allocated to the small claims track the claim shall be treated, for the purposes of costs, as if it were proceeding on the fast track except that trial costs shall be in the discretion of the court and shall not exceed the amount that would be recoverable under rule 45.38 (amount of fast track costs) if the value of the claim were up to £3,000.

(4) Where all the parties agree the court may, when it allocates the claim, order that rule 27.14 (costs on the small claims track) applies and, where it does so, paragraph (3) does not apply.

Conditions

(a) the tenancy and any agreement for the tenancy were entered into on or after 15 January 1989;

(b) the only purpose of the claim is to recover possession of the property and no other claim is made;

(c) the tenancy did not immediately follow an assured tenancy which was not an assured shorthold tenancy;

(d) the tenancy fulfilled the conditions provided by section 19A or 20(1)(a) to (c) of the 1988 Act4;

(e) the tenancy –

(i) was the subject of a written agreement;

(ii) arises by virtue of section 5 of the 1988 Act but follows a tenancy that was the subject of a written agreement; or

(iii) relates to the same or substantially the same property let to the same tenant and on the same terms (though not necessarily as to rent or duration) as a tenancy which was the subject of a written agreement; and

(f) a notice in accordance with sections 21(1) or 21(4) of the 1988 Act5was given to the tenant in writing.

(2) If the tenancy is a demoted assured shorthold tenancy, only the conditions in paragraph (1)(b) and (f) need be satisfied.

Possession order

Postponement of possession

(1) Where the defendant seeks postponement of possession on the ground of exceptional hardship under section 89 of the Housing Act 19806, the judge may direct a hearing of that issue.

(2) Where the judge directs a hearing under paragraph (1) –

(a) the hearing must be held before the date on which possession is to be given up; and

(b) the judge will direct how many days' notice the parties must be given of that hearing.

(3) Where the judge is satisfied, on a hearing directed under paragraph (1), that exceptional hardship would be caused by requiring possession to be given up by the date in the order of possession, he may vary the date on which possession must be given up.

Conditions for IPO application

(1) An application for an IPO may be made where the following conditions are satisfied –

(a) the only claim made is a possession claim against trespassers for the recovery of premises;

(b) the claimant –

(i) has an immediate right to possession of the premises; and

(ii) has had such a right throughout the period of alleged unlawful occupation; and

(c) the claim is made within 28 days of the date on which the claimant first knew, or ought reasonably to have known, that the defendant (or any of the defendants), was in occupation.

(2) An application for an IPO may not be made against a defendant who entered or remained on the premises with the consent of a person who, at the time consent was given, had an immediate right to possession of the premises.

Footnotes

1988 c. 50; section 21 was amended by the Local Government and Housing Act 1989 (c. 42), section 194(1) and Schedule 11, paragraph 103 and by the Housing Act 1996 (c. 52), sections 98 and 99. Back to text